Bassett v. United States

• Decision Date: 22 December 1890
• Citation: 11 S.Ct. 165,34 L.Ed. 762,137 U.S. 496
• Parties: BASSETT v. UNITED STATES
• Court: U.S. Supreme Court

137 U.S. 496

11 S.Ct. 165

34 L.Ed. 762

BASSETT v. UNITED STATES.

December 22, 1890.

F. S. Richards, for plaintiff in error.

Atty. Gen. Miller, for the United States.

[Argument of Counsel from pages 497-501 intentionally omitted]

BREWER, J.

On November 23, 1886, the grand jury of the first judicial district court of Utah found an indictment for polygamy against the plaintiff in error, charging him with having married one Kate Smith on the 14th day of August, 1884, when his lawful wife, Sarah Ann Williams, was still living and undivorced. Upon trial before a jury, a verdict of guilty was returned, and he was sentenced to imprisonment for a term of five years, and to pay a fine of $500. Such sentence, on appeal, was affirmed by the supreme court of the territory, and is now brought to this court for review.

A preliminary question is presented by the attorney general. It is urged that there was no proper bill of exceptions as to the proceedings in the trial court, and therefore nothing is presented which this court can review. But we are reviewing the judgment of the supreme court of the territory; and the rule in this court is not to consider questions other than those of jurisdiction, which were not presented to the court whosejud gment we are asked to examine. Clark v. Fredericks 105 U. S. 4. Beyond the fact that the proceedings of the trial court were examined and considered by the supreme court of the territory, and are therefore presumably reviewable by this court, is this matter, noticed by this court in the case of Hopt v. Utah, 114 U. S. 488, 5 Sup. Ct. Rep. 972: That a large liberty of review is given by the statutes of Utah to the supreme court of the territory, even in the absence of a formal bill of exceptions. See, also, Stringfellow v. Cain, 99 U. S. 610; O'Reilly v. Campbell, 116 U. S. 418, 6 Sup. Ct. Rep. 421. But it is unnecessary to rest upon this recognition by the supreme court of the territory, or the presumptions arising therefrom. The record shows the pleadings, proceedings, and exceptions to the charge of the trial judge, all certified properly by T. A. Perkins, the clerk of the trial court. At the close of his certificate, which is of date January 20, 1887, is this statement: 'And I further certify that a copy of defendant's bill of exceptions in said cause is not made part hereof because said bill of exceptions is in the possession of defendant's counsel, at the city of Salt Lake, and because I am informed by said counsel that it has been stipulated by and between themselves and the United States district attorney for Utah territory that the original thereof in place of such copy should be used in the supremecourt upon this appeal.' The bill of exceptions referred to by him in this statement is signed by the trial judge, and thus indorsed: 'No. 984. First Dist. Court, Utah. The United States vs. William E. Bassett. Polygamy. Bill of exceptions. Filed Jan'y 19th, 1887. T. A. PERKINS, Clerk;' and also by the clerk of the supremecourt of the territory as 'Filed Feb'y 2nd, 1887,' the date of the filing of the transcript of the proceedings of the trial court. The import of all this is that the bill of exceptions signed by the trial judge was filed in the trial court: and that, for the purposes of economy, time, and convenience, such original bill, together with the record of the proceedings, was brought to and filed in the supreme court after having been filed in the trial court. It needs but this suggestion, that if a copy is good the original is equally good. The identification of such bill of exceptions is perfect, vouched by the sig- natures of the trial judge, the clerk of the district court, and the clerk of the supreme court. To ignore such authentication would place this court in the attitude of resting on a mere technicality to avoid an inquiry into the substantial rights of a party, as considered and determined by both the trial court and the supreme court of the territory. In the absence of a statute or special rule of law compelling such a practice, we decline to adopt it.

Passing from this question of practice to the merits, the principal question, and the only one we deem necessary to consider, is this: The wife of the defendant was called as a witness for the prosecution, and permitted to testify as to confessions made by him to her in respect to the crime charged, and her testimony was the only direct evidence against him. This testimony was admitted under the first paragraph of section 1156 of the Code of Civil Procedure, enacted in 1884, (section 3878, Comp. Laws Utah 1888,) which reads: 'A husband cannot be examined for or against his wife, without her consent, nor a wife for or against her husband, without his consent; nor can either, during the marriage or afterwards, be, without the consent of the other, examined as to any communication made by one to the other during the marriage; but this exception does not apply to a civil action or proceeding by one against the other, nor to a criminal action or proceeding for a crime committed by one against the other.' And the contention is that 'polygamy' is within the language of that paragraph a crime committed by the husband against the wife. We think this ruling erroneous. A technical argument against it is ths: The section is found in the Code of Civil Procedure, and its provisions should not be held to determine the competency of witnesses in criminal cases, especially when there is a Code of Criminal Procedure, which contains sections prescribing the conditions of competency. Section 421 of the Code of Criminal Procedure, (section 5197, Comp. Laws 1888,) is as follows: 'Except with the consent of both, or in cases of criminal violence upon one by the other, neither husband nor wife are competent witnesses for or against each other, in a criminal action or proceeding to which one or both are parties.' Clearly under that section the wife was not a competent witness. It is true that the Code of Criminal Procedure was enacted in 1878, and the Code of Civil Procedure in 1884, so that the latter is the last expression of the legislative will; but a not unreasonable construction is that the last clause of this paragraph was inserted simply to prevent the rule stated in the first clause from being held to apply to the cases stated in the last, leaving the rule controlling in criminal cases to be determined by the already enacted section in the Code of Criminal Procedure. This construction finds support in the fact that the same legislature which...